It is very likely the most
disadvantaged will be largely overlooked by the complaints
procedure for economic, social and cultural rights (social
justice) being discussed at the United Nations which so far
has failed to ensure that the core minimum obligations of
these rights are included in the text. In addition New
Zealand continues to fail to fully endorse a comprehensive
complaints procedure preferring to be selective as to which
rights will apply.

The complaints procedure, called
an Optional Protocol (OP), is expected to be approved by the
United Nations Human Rights Council in its session from 31
March to 4 April, 2008 and if passed in its present form
will, in my view, fail to ensure the State's social
responsibility to an underclass which has grown considerably
since 1991. According to human rights logic those suffering
the most serious violations must be emphasised over those
suffering lesser violations although not excluding the
latter. However previous human rights instruments have
failed to address the needs of those in most suffering. The
spirit of the International Covenant on Economic, Social and
Cultural Rights, which is essentially egalitarian, born in
the Industrial Revolution of the 19th Century and the Great
Depression, would be utterly destroyed as well as the hopes
and dreams of billions of people if these human rights are
used simply to further elite interests.

However a
positive aspect of draft OP is that it will not only be
concerned with the economic, social and cultural rights of
the middle classes but also that of the majority, working
class. This reflects the emphasis being placed on democracy
in the foreign policy of the Bush administration. This
concession by global elites reflects, in my view, the
concern at the global moral decline of the leading liberal
democracies i.e. America and Britain because of their
failures in the Iraq War. Now elite consent for the further
pursuit of neoliberalism is insufficient and majority
consent is required. This consent, coupled with the War on
Terror, will help provide unity at a time when stability is
threatened by terrorism and demands by political dissidents
for social justice.

The present draft Optional
Protocol (A/HRC/6/WG.4/2,23/4/07), which deals with social
injustices as defined by the International Covenant on
Economic, Social and Cultural Rights (ICESCR), has been
under discussion by open-ended working groups (OEWG) at the
United Nations since 2004. An OP will make it possible for
individual, groups or organizations acting on their behalf
to seek justice at the international level for violations of
economic, social and cultural rights by submitting
complaints to the UN Committee on Economic, Social and
Cultural Rights. The adoption of the draft OP will also
provide support to efforts to get greater recognition of
economic, social and cultural rights in domestic law and
before courts. When New Zealand acceded to the OP for the
International Covenant on Civil and Political Rights in 1989
this was immediately followed by the New Zealand Bill of
Rights Act (1990), the New Zealand Human Rights Act 1993
plus a number of commissions to hear complaints. This
suggests it is likely there will be some means of making
complaints domestically for infringements of economic,
social and cultural rights once States ratify the OP.

Economic, social and cultural rights (social
justice) in addition to civil and political rights (freedom
and democracy) are also part of the Universal Declaration of
Human Rights but since the collapse of communism in Eastern
Europe in 1989 the former have been marginalized at the
United Nations. However, in recent times, with the global
concern for the increasing gap between the rich and the poor
and its consequences economic, social and cultural rights
are being given more recognition at the United Nations. In
addition to the present draft OP there are the discussions
taking place simultaneously at the United Nations on the
right to development which requires both sets of rights.
While civil and political rights deal with individual
freedoms such as freedom of speech, non-discrimination and
the right to a fair trial, economic, social and cultural
rights are concerned with social responsibility such as the
rights to employment, fair wages, health, housing, education
and an adequate standard of living. Unless the State is
socially responsible people are often too poor to access
their civil and political rights e.g. have a voice in
society or the liberty to pursue their dreams.

As with other human rights instruments ratified by New
Zealand in the past which failed to emphasize the human
rights of the most disadvantaged the present draft OP
excludes any reference to core minimum obligations as
devised by the United Nations Committee on Economic, Social
and Cultural Rights (see General Comments No. 3 and No. 14).
These core minimum obligations, which deal with some of the
worse economic, social and cultural rights violations such
as homelessness, long term unemployment, children in extreme
poverty, benefits below the poverty line necessitating the
use of food banks and begging on the streets, would have
ensured that an emphasis would be given to the most
disadvantaged - those in most suffering. The United
Nations afford States a 'wide margin of appreciation' in
their interpretation of human rights instruments and this
also applies to the present draft OP. Typically, in the
past, States have used this 'wide margin of discretion' to
'turn human rights on its head' emphasizing the human rights
of the middle classes, followed by workers and ignoring the
increasing growth of an underclass. As a consequence the
requirements of neoliberalism take priority over human
rights.

The draft OP could have provided an
opportunity to rectify the miserable failures of previous
human rights instruments which failed to stem the rapid
growth of an underclass. At present according to Catarina de
Albuquerque, the Chair of the OEWG, 'the proposed text [of
the draft OP for ICESCR] draws from existing communication
procedures' which strongly suggests it will be as irrelevant
to the most disadvantaged as the other instruments have been
especially as the great majority of States pursue
neoliberalism which creates a big gap between rich and poor.
International instruments ratified by New Zealand, which
also have an OP or complaints procedure, include the
convention on the elimination of discrimination towards
women (1984) and the convention on the elimination of
discrimination with respect to race (1972). While the human
rights instruments were also meant to protect the most
disadvantaged affirmative action policies saw increasing
numbers of women and Maori entering the bureaucracy and
parliament but the underclass increased. The Maori
unemployment rate rapidly rose to 16% (and oscillated around
that level for 21 years until recently decreasing to 8% (now
that New Zealand has achieved a low wage economy)). And with
respect to women the numbers on Domestic Purposes Benefit
increased considerably from 1984 to the present: from 56,548
in 1985 (Broken Welfare? North and South Magazine, May 2000)
to 93,090 in 2006 (2006 Census, Sources of Personal Income,
Statistics New Zealand, Table 37). Also with respect to the
covenant on civil and political rights (1978) much more
emphasis was placed on the interests of the middleclass such
as equal pay and non-discrimination with respect to men and
women on high wages while the poor, voiceless and powerless,
have been largely ignored. Unlike many other groups the poor
are given the opportunity to promote their views in the
mainstream media i.e. newspaper space, or time on radio and
television. They are generally forced to use fringe
outlets.

Other major flaws of the draft OP, in my
opinion, include failing to ensure human rights education,
failing to guard against retrogressive measures i.e.
arbitrarily reducing levels of human rights, and failing to
address the right to development. These issues are fully
discussed in my book 'Freedom from Our Social Prisons: The
Rise of Economic, Social and Cultural Rights'* (see
below).

A controversial issue at the OEWG is whether
States should be able to select the rights they are prepared
to be dealt with by the UN Committee on Economic, Social and
Cultural Rights. According to the NGO Coalition for an OP
for ICESCR an OP which would extend to all economic, social
and cultural rights in the Covenant (the comprehensive
approach) is now supported by a growing majority of States,
including all African, Latin American and Carribean states,
as well as the majority of European and an increasing number
of Asian states. However the NGO Coalition states that some
states are continuing to push for the adoption of a
so-called 'a la carte' OP, under which states would be able
to treat the ICESCR as a menu of rights and specify which
rights they would be willing to accept complaints on. These
latter countries include Austria, Australia, Canada,
Denmark, Greece, Ireland, the Netherlands, New Zealand,
Sweden, Switzerland and the United Kingdom and the NGO
Coalition has been trying over the past month to encourage
these countries to change their stance or reserve their
decision. The 'a la carte approach' allows States to exclude
inconvenient rights e.g. the right to fair wages in a low
wage economy.

*A more full discussion of the
draft OP can be found in chapter five of my book 'Freedom
from our Social Prisons: the Rise of economic, Social and
Cultural Rights' due to be released on May 28, 2008. It is
presently being pre sold on the Lexington Books (Rowman and
Littlefield) website as well as other websites.

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